Stone v. Stone

Scott, Judge,

delivered the opinion of the court.

1. The question involved in this case, was formerly before this court, in the suit of Davis v. Davis, 5 Mo. Rep. The opinion then expressed was favorable to a right of recovery by the present plaintiff. The principle is an important one, and, however harsh its application in the present instance may be, we deem it too essential to the preservation of the right of dower of widows in their deceased husband’s estates, to suffer it to be overthrown, even in a case which has no merit to commend it.

The common law gave no dower to the widow in her husband’s personalty. The writ de rationabili parte bonorum was, grounded on a custom. So, the part to which a widow was entitled of the personal estate of a deceased freeman of London, was derived from custom. The common law only gave dower in lands, tenements and hereditaments. That right was, by ancient statutes,' as well as by the common law, protected from collusive recoveries, suffered by the husband, with the intent to defeat it. It could not be aliened by him without the con *392 sent of his wife. Our statute gives dower both in lands and personal estate, and the power of bequeathing is, by the statute of wills, expressly so limited as to secure the dower of the widow in the personalty.

Although dower is given in personal estate by our statute, yet it was not thereby intended to restrain the husband’s absolute control of it during his life, to give and dispose of as he wills ; provided it be not done in expectation of death, and with a view to defeat the widow’s dower. The husband may do as he pleases with his personal property, subject to this restriction. After the enjoyment of the property, in the most absolute manner, during almost his entire life, the law will not permit him, at the approach of death, and with a view to defeat his wife’s right of dower, to give it away. If such a disposition was allowed, the efficacy of the statute conferring dower in personalty, would depend on the whim or caprice of the husband.

By a custom of London, if a freeman of the city dies, leaving a widow and children, his personal estate, after his debts are paid, and the customary allowance for his funeral and the widow’s chamber being first deducted, is to be divided into three equal parts, and thus disposed of : one-third part to the widow ; another third part to the children unadvanced by him in his life-time, and the other third part such freeman may bequeath. But if he has no wife, but has children, the half of his personal estate belongs to his children, and the other half he may dispose of by will or otherwise. The statute of 11 Geo. I. made great alterations in this custom, and hence we have no date cases on this question. But while it obtained, the books furnish many cases in relation to it. Fonblanque says, “the custom of London must be entirely given up, if equity would not assist to set aside conveyances in fraud of the custom ; and, therefore, where a freeman had not altogether dismissed himself of his estate in his life-time, and the deed being made when he was languishing, and but a little before his death, it ought to be looked upon as a donatio causa mortis ; but will *393 stand good as to a moiety, which he, having no wife, might dispose of. 1 vol. 218. The cases amply sustain this author, who is himself no mean authority.

The facts established clearly bring the present case within the influence of the principle above stated. The deed was made in immediate anticipation of death, and with a view to prevent the widow’s right to dower attaching in the slaves conveyed. The considerations suggested in the case of Lightfoot’s Executor v. Colgin & wife, 5 Munf. 42 , have been weighed ; but we incline to the opinion of the dissenting judge in that ’case. With the concurrence of the other judges, the judgment is reversed and the cause remanded.